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2005 DIGILAW 1618 (MAD)

Ramanathan v. Dhanabakkiyam

2005-09-27

R.BANUMATHI

body2005
Judgment :- (PRAYER: Revision filed against the order-dated 23.08.1996, made in I.A.No.1611/1994 in O.S.No.445/1991 on the file of the Principal District Munsif, Ramanathapuram.) This revision is directed against the order of the Principal District Munsif, Ramanathapuram passed in I.A.No.1611/1994 in O.S.No.445/1991, dated 23.08.1996, dismissing the Petition filed under Or.47 R.1 CPC and Section 151 CPC declining to review the earlier order passed in I.A.No.1353/1994. Defendant is the Revision Petitioner. 2. Revision Petitioner/Defendant is said to have borrowed a sum of Rs.10,000/- from the Respondent/Plaintiff on 18.10.1988, executing a Promissory Note. On 21.11.1988, a sum of Rs.1,000/- was paid making an endorsement. Case of the Plaintiff is that inspite of repeated demands and issuance of notice on 04.10.1991, the Defendant has not paid the amount. Hence the suit O.S.No.445/1995 was filed, claiming Rs.14,310/-, with subsequent interest. 3. The Defendant resisted the suit inter-alia contending that the Promissory Note is a forged one. According to the Defendant, there was business dealings between him and one Munusamy of Keezhakarai, relative of the Plaintiff and that difference of opinion arose between the Defendant and the said Munusamy and the suit has been filed at the instance of the said Munusamy, with a view to cause hardship and inconvenience to the Defendant. In the Written Statement, the Defendant has denied his signature in the Promissory Note and also the alleged endorsement. The Defendant has further submitted that there was no need or occasion for him to borrow money. 4. When the suit was posted for trial, the Defendant has not appeared. Hence the suit was decreed exparte on 16.08.1994. I.A.No.1353/1994 was filed to set aside the exparte decree. The said application was ordered on 16.09.1994, directing the Revision Petitioner/Defendant to pay a cost of Rs.300/- to the Respondent/Plaintiff on or before 26.09.1994. Since the cost was not paid on or before 26.09.1994, I.A.No.1353/1994 was dismissed. 5. I.A.No.1611/1994:- After the dismissal of the application in I.A.No.1353/1994, the Defendant has filed this application under Or.47, R.1 CPC, read with Section 151 CPC to review the earlier order passed in I.A.No.1353/1994. Since the cost was not paid on or before 26.09.1994, I.A.No.1353/1994 was dismissed. 5. I.A.No.1611/1994:- After the dismissal of the application in I.A.No.1353/1994, the Defendant has filed this application under Or.47, R.1 CPC, read with Section 151 CPC to review the earlier order passed in I.A.No.1353/1994. According to the Defendant, on account of his ill-health, he could not again meet his counsel and that he has sent the money through his brother-in-law – Rangan and that the said Rangan was not able to locate the counsel's house and therefore, the cost could not be paid before 26.09.1994 and that the non-payment of cost was not wilful and hence sought for review of the earlier order. 6. The trial Court dismissed the Petition finding that the Defendant had known the order passed on 16.09.1994 and that no reasonable explanation is forthcoming for the non-payment of cost before 26.09.1994. The reason stated by the Defendant for non-payment of the cost before 26.09.1994 was not acceptable to the trial Court. 7. Aggrieved over the dismissal of I.A.No.1611/2004, the Defendant has preferred this revision. It is contended that under Section 148 CPC, the Court can extend the time for payment of cost. The learned counsel for the Revision Petitioner has submitted that the Court below erred in not taking note of the substantial defence put-forth by the Defendant and the explanation offered by him for not paying the cost before 26.09.1994. Submitting that misquoting of the provision would not be a ground for disallowing the application, the learned counsel for the Revision Petitioner/Defendant has relied upon 2000 III CTC 228 [Pakkiammal Vs. Anaiappan]. 8. At the time when the revision was filed, only Notice of Motion was ordered. The Respondent has not been served. Since the revision is of the year 1997 and that Respondent has not been served, arguments in the main revision itself was heard. 9. To set aside the exparte decree dated 16.08.1994, I.A.No.1353/1994 was filed. The same was ordered on 16.09.1994, directing the Defendant to pay cost of Rs.300/- on or before 26.09.1994. But the cost was not paid. Hence I.A.No.1353/1994 was dismissed. The main point for consideration is whether the Defendant could file an application to review the earlier order of dismissal in I.A.No.1353/1994 and whether sufficient cause has been shown either for reviewing the order or for extending the time for payment of cost. 10. But the cost was not paid. Hence I.A.No.1353/1994 was dismissed. The main point for consideration is whether the Defendant could file an application to review the earlier order of dismissal in I.A.No.1353/1994 and whether sufficient cause has been shown either for reviewing the order or for extending the time for payment of cost. 10. A review is by no means an appeal in disguise, whereby the earlier order could be set aside. If the cost was not paid before 26.09.1994, onbehalf of the Defendant an application ought to have been filed under Section 148 CPC seeking for extension of time. But that was not to be so. Even immediately thereafter, an application to restore I.A.No.1353/1994 or seeking for extension of time was not filed. The application I.A.No.1611/1994 was filed only on 18.10.1994. The Defendant has not produced any material showing his illness nor examined his brother-in-law – Rangan, through whom he is alleged to have sent the money for handing over to the counsel. If really the money was so sent by the Defendant, an application could have been filed immediately after 26.09.1994. 11. A review could be allowed only on the three following grounds, viz.: - "(i)discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the Decree was passed or order was made; (ii)mistake or error apparent on the face of the record; (iii)for any other sufficient reason." The case in hand does not fall under the grounds (i) and (ii) since there is no error apparent on the face of the record, nor there is discovery of any new matter or evidence. 12. It is to be considered whether the earlier order could be reviewed 'for any other sufficient reason'. The expression 'for any other sufficient reason' has been interpreted to mean "a reason sufficient on grounds at least analogous to those specified immediately previously" i.e. failure to bring to the notice of the Court new and important matters or error apparent on the face of the record. It is well settled that the words 'for any other sufficient reason' means "a reason sufficient on grounds analogous to those specified in the Rule". Absence of counsel or negligence on the part of the party is not a ground for allowing review. It is well settled that the words 'for any other sufficient reason' means "a reason sufficient on grounds analogous to those specified in the Rule". Absence of counsel or negligence on the part of the party is not a ground for allowing review. This is all the more so when Defendant has failed to comply with the conditional order of paying the cost. Revision Petitioner/Defendant has not made out any sufficient reason for reviewing the order of dismissal passed in I.A.No.1353/1994. 13. Contending that misquoting of the provision in the Petition, order 47 R.1 CPC, would not in any way be an impediment for granting extension of time to the Defendant, the learned counsel for the Revision Petitioner has relied upon 2000 (III) CTC 228 . It is submitted that since the Defendant has put-forth a defence denying execution of the promissory note, in the interest of justice, he ought to be given an opportunity to defend the suit. In the above suit, Petition was filed for extension of time relying upon Section 151 CPC instead of Section 148 CPC. In the said case, the suit was dismissed for default, for which the Petition was filed under Or.9 R.9 CPC which was allowed on condition to pay the cost. But the Plaintiff has not paid the cost on account of the ill-health and he was not able to comply with the condition imposed by the Court, resulting in the dismissal of the suit. Under that factual situation, to advance substantial justice and to restore the suit filed by the Plaintiff, the learned Judge has held that quoting of wrong provision of law does not entitle the Plaintiff/ Petitioner to the relief sought for and allowed the revision. 14. The case in hand stands entirely on a different footing. Having put-forth the defence of forgery, the Defendant ought to have been more careful. By a careful analysis of the case, it is seen that there has been lack of diligence and inaction on the part o the Defendant at all stages. The suit is of the year 1991. This revision was filed in 1997. Even in this Court, the Defendant had not taken diligent steps for serving Notice to the Respondent. Under such circumstances, the revision is bereft of merits and is liable to be dismissed. 15. The suit is of the year 1991. This revision was filed in 1997. Even in this Court, the Defendant had not taken diligent steps for serving Notice to the Respondent. Under such circumstances, the revision is bereft of merits and is liable to be dismissed. 15. For the foregoing reasons, this Revision Petition is dismissed, confirming the order of the Principal District Munsif, Ramanathapuram, made in I.A.No.1611/1994 in O.S.No.445/1991 dated 23.08.1996. In the circumstances of the case, there is no order as to costs. Consequently, C.M.P.No.5382/1997 is also dismissed. 16. The learned District Judge is directed to dispose of the suit expeditiously.